NJ: Protective weapons search may be obviated by officers’ control of the situation

Reasonable suspicion that a vehicle may contain a weapon can be obviated by the number of officers controlling the scene. Here, the officers outnumbered the occupants of the car and had everybody out, so nobody was getting access to a weapon in the car. [This begs the question of what happens if any of them are released and would get back to the car and then any weapon present?] The inevitable discovery exception may apply, so the case is remanded for consideration of that. State v. Robinson, 2017 N.J. LEXIS 424 (May 1, 2017):

Although the circumstances gave rise to a reasonable suspicion that there was a weapon in the vehicle, the five officers’ swift and coordinated action eliminated the risk that any of the four occupants would gain immediate access to the weapon. Accordingly, the protective sweep exception to the warrant requirement does not govern this case. The community-caretaking exception to the warrant requirement is irrelevant. However, the inevitable discovery exception to the exclusionary rule may be pertinent to this case.

1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution guarantee “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and set forth the requirements for warrants. Warrantless searches are permissible only if justified by one of the few specifically established and well-delineated exceptions to the warrant requirement. It is the State’s burden to prove that a warrantless search falls within one or more of those exceptions. (pp. 16-17)

2. The protective sweep exception to the warrant requirement derives from Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In Terry, the Supreme Court held that a police officer may initiate an investigatory stop in the presence of “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21. Terry stops are narrowly drawn to permit a reasonable search for weapons. (pp. 17-19)

4. Long and the Court’s opinions in Lund and Gamble define the standard for a valid protective sweep of an automobile following a traffic stop: the State must present specific and articulable facts that, considered with the rational inferences from those facts, warrant a belief that an individual in the vehicle is dangerous and that he or she may gain immediate control of weapons. The protective sweep exception in the automobile setting does not turn solely on the potential presence of a weapon in a vehicle. Instead, it addresses the imminent danger to police when a driver or passenger will be permitted access to a vehicle that may contain a weapon or may be in a position to evade or overpower the officers at the scene. That standard governs this appeal. (p. 22)

5. In light of Officer Ceci’s observations of defendant’s driving, there were specific and articulable facts giving rise to reasonable suspicion that defendant had committed motor vehicle violations and that the traffic stop was therefore lawful. However, Officer Ceci’s search of the car was not a valid protective sweep. There is no doubt that Officer Ceci’s concerns that defendant and Henderson could be armed were justified, but Officer Ceci addressed the potential danger with prompt and effective action. None of the four occupants was given an opportunity to return to the car or was in a position to gain access to any weapon. The record did not reveal specific and articulable facts that, at the time of Officer Ceci’s search of the vehicle, would reasonably warrant the conclusion that any of the vehicle’s four occupants was potentially capable of gaining immediate control of weapons. The search of the car was not within the protective sweep exception to the warrant requirement. (pp. 23-25)

6. This case does not fit within the narrow parameters of the community-caretaking doctrine as applied to the search of a motor vehicle. There was no potential threat to any person’s safety warranting application of the doctrine at the time that the search took place. The Court does not reach the “plain-feel” exception. (pp. 25-28)

7. In light of the officers’ continued control over the vehicle, their reasonable concern that one or more occupants could have been armed, and the uncertain status of the vehicle’s owner, it may have been inevitable that the handgun would have been discovered. Consequently, the inevitable discovery exception to the exclusionary rule is potentially relevant to this case. The Court explains that exception and provides guidance for evaluating its applicability on remand, but offers no view on the resolution of any issues raised on remand. (pp. 28-32)

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).

"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]

“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew

"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)